United States v. Mayton

• Citation: 335 F.2d 153
• Decision Date: 23 July 1964
• Docket Number: No. 21014,21032.,21014
• Parties: UNITED STATES of America, Appellant, v. Neely B. MAYTON, John Allen Blackburn, Floyd Bamberg, as Registrars of Voters of Perry County, Alabama, and State of Alabama, Appellees. UNITED STATES of America, Petitioner, v. Honorable Daniel H. THOMAS, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

335 F.2d 153 (1964)

UNITED STATES of America, Appellant, v. Neely B. MAYTON, John Allen Blackburn, Floyd Bamberg, as Registrars of Voters of Perry County, Alabama, and State of Alabama, Appellees.

UNITED STATES of America, Petitioner, v. Honorable Daniel H. THOMAS, Respondent.

Nos. 21014, 21032.

United States Court of Appeals Fifth Circuit.

July 23, 1964.

COPYRIGHT MATERIAL OMITTED

Vernol R. Jansen, Jr., U. S. Atty., Mobile, Ala., David Rubin, Harold H. Greene, Attys., Dept. of Justice, John Doar, First Asst. Atty. Gen., Dept. of Justice, David L. Norman, Atty., Dept. of Justice, Washington, D. C., Burke Marshall, Asst. Atty. Gen., Howard A. Glickstein, Alan G. Marer, Battle Rankin, Attys., Dept. of Justice, Washington, D. C., for appellant.

Richmond M. Flowers, Atty. Gen. of Ala., Gordon Madison, Asst. Atty. Gen. of Ala., Montgomery, Ala., for appellees.

Before HUTCHESON and BROWN, Circuit Judges, and CHRISTENBERRY, District Judge.

JOHN R. BROWN, Circuit Judge.

The serious question presented by this case may be simply stated. What is the proper role of the District Judge in the administration of § 601(a) of the Civil Rights Act of 1960 following the finding of a pattern or practice of voter racial discrimination?¹ The underlying facts are these.

On August 27, 1962, the United States, pursuant to the authority granted in § 131(c) of the Civil Rights Act of 1957,² filed a complaint in the District Court which alleged that the defendants, the State of Alabama and the Registrars of Perry County, Alabama³ had engaged in racially discriminatory acts and practices in the voter registration process in Perry County. The complaint prayed for an injunction and a finding that the alleged discrimination was pursuant to a pattern or practice, a finding which is a statutory condition to the utilization of the Judge-Referee machinery created by § 601(a) of the Civil Rights Act of 1960.⁴ On October 26, 1962, the District Judge heard the motion for preliminary injunction, and on November 15, 1962, entered an order which, among other things, enjoined the defendants from engaging in "any act or practice which involves or results in distinctions based on race or color in the registration of voters in Perry County, Alabama." After further proceedings in the District Court not material to the precise issue before this Court culminated in an order by the District Judge on May 17, 1963,⁵ nothing further happened until August 6, 1963. On that date 142 letters characterized by the District Judge as "writings" were handed to the Chief Deputy Clerk in the District Clerk's office. On August 15, 1963, the District Judge entered an order which, among other things, contained the following:

"The Court is of the opinion that said writings, if intended as applications for registration under the provisions of 42 USCA 1971(e), Civil Rights Act of 1960, do not contain requisite information to qualify them as such applications, and are therefore not entitled to recognition as such."

Another 33 letters received in the District Clerk's office on September 17, 1963, were similarly disposed of by order of the District Judge entered September 27, 1963. Though the orders are unilluminated by findings or memorandum opinion, it seems quite certain that in this initial exposure to the post-pattern-or-practice mechanism, the Judge in good faith believed that, though informally prepared, each application had to pass the lawyers' test of setting out each of the minimum elements of the right much as would a pleader of a civil action, F.R.Civ.P. 2.

The United States appeals from these orders, asserting that the District Judge erred in rejecting the letters as insufficient to constitute applications for orders declaring the applicants qualified to vote as contemplated by 42 U.S.C.A. § 1971(e).⁶

We are met at the outset with contentions that (1) the orders of the District Judge are not appealable and (2) the United States is not a proper party appellant.

I. Orders Appealable

The statute refining the jurisdiction of Courts of Appeals provides that we have jurisdiction of appeals from all final decisions of the District Courts except where a direct review may be had in the Supreme Court. 28 U.S.C.A. § 1291.⁷ The orders here appealed from are admittedly not final in the sense that they fully terminate an entire cause. If the statute allows appeals only from judgments which are final in this sense, the orders in this case are not appealable.

However, the Supreme Court has long recognized a small class of orders, now referred to as collateral orders, which are offshoots from the principal litigation in which they are issued, and which are immediately appealable as "final decisions" without regard to the posture of the principal litigation.⁸ As noted by Professor Wright, the leading case is Cohen v. Beneficial Industrial Loan Corp., 1949, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528. In that case the Supreme Court held that an order of the District Court in a stockholders' suit denying the defendant's motion to require plaintiff to post security for defendant's costs was appealable as a final decision within the meaning of 28 U.S. C.A. § 1291. In so holding, the Court said:

"This decision appears to fall in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated. * * *

"We hold this order appealable because it is a final disposition of a claimed right which is not an ingredient of the cause of action and does not require consideration with it."⁹

The Court stated in that opinion that it had "long given this provision of the statute this practical rather than a technical construction," and its subsequent decisions indicate that it will continue to do so.¹⁰

In United States v. Wood, 5 Cir., 1961, 295 F.2d 772, 778, cert. denied, 1962, 369 U.S. 850, 82 S.Ct. 933, 8 L.Ed.2d 9, we held that an order denying a temporary restraining order against a state criminal prosecution was immediately appealable under the doctrine.¹¹ After analysis of the Cohen case and other Supreme Court decisions, we concluded that,

"An order, otherwise nonappealable, determining substantial rights of the parties which will be irreparably lost if review is delayed until final judgment may be appealed immediately under section 1291."

The right claimed by each of the applicants here is the right to an order pursuant to 42 U.S.C.A. § 1971(e) "declaring each qualified to vote." The orders of the District Judge rejecting such applications finally determine these claims of right. After the order, none of the applications is pending. Nothing further remains to be done. So far as a particular applicant on this application is concerned, it is all over. Like any plaintiff whose complaint has been dismissed for failure to state a claim, F.R. Civ.P., 12(b), the order is the end of the claim on its merits unless appealed from and reversed.¹² The orders are too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated. The main suit will not terminate until the discrimination is ended. As in Cohen and Wood, when that time comes it will be too late effectively to review the orders, and the rights conferred by subsection (e) will have been lost, probably irreparably. We therefore hold that the orders of the District Court are appealable.

II. The United States the Proper Appellant

The contention that the United States is not a proper party appellant may be briefly disposed of. The argument rests on a misconception of a suit under the Civil Rights Acts. As Judge Wisdom said for the Court in United States v. Manning, W.D.La., 3-Judge, 1963, 215 F.Supp. 272, 294:

"The controversy is not between certain aggrieved Negroes and the defendants. The controversy is between the United States and the named defendants."

There is only one suit pending in the District Court — the subsection (c), 42 U.S.C.A. § 1971(c), suit. The right of the United States to maintain the suit and obtain injunctive relief is created by § 131(c) of the 1957 Act, 42 U.S.C.A. § 1971(c). As was further pointed out in Manning, the suit is designed to "vindicate the public interest in the constitutional right of all citizens to be free from racial discrimination in exercising voting rights." 215 F.Supp. 272, at 295. This is not lessened by § 601(a) of the 1960 Act, 42 U.S.C.A. § 1971(e) which also creates a practical means of effectuating that right by providing for orders declaring certain named individuals entitled to vote. When the mechanism is stopped by action of the District Judge from which an appeal may be taken, the proper party appellant is the United States. As Judge Wisdom observed for the Court in Manning, the United States is the real party aggrieved by the discrimination, 215 F.Supp. 272, 295, and, as we see here, is the plaintiff in the only suit pending in the District Court. There is no merit to the contention that the United States is not a proper party appellant.¹³

III. Pattern-or-Practice Declared

Before determining whether the applications were sufficient, we must first dispose of the contention that no pattern or practice finding was made by the District Court and thus § 1971(e) procedures may not be invoked. We find no merit in this.

Judge Thomas made this finding in connection with the issuance of the injunction of November 15, 1962:

"3. Since at least 1959 the defendants have engaged in acts and practices which have had the purpose and effect of depriving Negroes of their right to register without distinction of race or color."

The words pattern or practice were not intended to be words of art. No magic phrase need be said to set in train the remedy provided in § 1971(e). Congres...